IN RE: AMALGAMATED WARBASSE HOUSES (2006)

In a proceeding pursuant to CPLR article 78 to review two determinations of the New York City Water Board dated February 9, 2004, and March 11, 2004, respectively, which denied the petitioners' appeals seeking reductions in charges on water and wastewater bills dated January 13, 1997, January 14, 1997, and May 16, 1997, the petitioners appeal from a judgment of the Supreme Court, Queens County (Price, J.), entered November 9, 2004, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Supreme Court, Queens County, for a new determination in accordance herewith.

On May 12, 1999, a notice promulgated by the New York City Water Board (hereinafter the Board) and posted on its website provided, inter alia, that water and wastewater bills issued before July 1, 1999, had to be challenged within six years of the date of issuance.   Sometime in 2002, the Board changed its rules to limit the time within which a complaint had to be filed to four years.   On March 4, 2005, the Board issued a resolution providing for a three-month grace period for filing a complaint following the implementation of the four-year limitations period in 2002.   The petitioners contend that the respondents improperly applied the four-year limitations period to the complaints they filed in May 2003, rather than the six-year limitations period, since the bills they challenged were issued before July 1, 1999.   The petitioners further contend that, in the event the four-year limitations period is applied, the resolution providing for a three-month grace period was not a reasonable amount of time to bring a complaint and violated their right to due process.

 The Supreme Court properly determined that the Board's retroactive application of the four-year limitations period within which customers may challenge their water and wastewater bills was not arbitrary, capricious, or an abuse of discretion (see CPLR 7803[3];  Matter of Featherstone v. Franco, 95 N.Y.2d 550, 555, 720 N.Y.S.2d 93, 742 N.E.2d 607;  Matter of Vil. of Scarsdale v. New York City Water Bd., 15 A.D.3d 590, 591, 792 N.Y.S.2d 86;  Matter of L.G.B. Assoc. v. New York State Div. of Hous. & Community Renewal, 292 A.D.2d 609, 609-610, 739 N.Y.S.2d 444;  Matter of Good Samaritan Hosp. v. Axelrod, 150 A.D.2d 775, 777, 542 N.Y.S.2d 28;  see also Bethco Corp. v. Tweedy, 7 Misc.3d 1011(A), 2004 WL 3310465).   Although the retroactive application of statutes is not favored absent language expressly or by necessary implication requiring it (see Majewski v. Broadalbin-Perth Cent. School Dist., 91 N.Y.2d 577, 584, 673 N.Y.S.2d 966, 696 N.E.2d 978), the Board's elimination of the distinction between the application of the limitations period to bills issued prior to the implementation of the relevant rate schedule and those issued thereafter, as well as the legislative history, supports a finding that the four-year limitations period was intended to be applied retroactively (see Bethco Corp. v. Tweedy, supra at *3;  cf. Majewski v. Broadalbin-Perth Cent. School Dist., 231 A.D.2d 102, 106-107, 661 N.Y.S.2d 293, affd. 91 N.Y.2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 [elimination of language from earlier version of Omnibus Act, which had explicitly provided for retroactive application, indicated legislative intent that act was not to apply retroactively] ).

 However, when, as here, a limitations period is statutorily shortened, or when a limitations period is created where none previously existed, “[d]ue process requires that potential litigants be afforded a ‘reasonable time ․ for the commencement of an action before the bar takes effect’ ” (Brothers v. Florence, 95 N.Y.2d 290, 300-301, 716 N.Y.S.2d 367, 739 N.E.2d 733, quoting Terry v. Anderson, 95 U.S. 628, 632-633, 24 L.Ed. 365).

 Following entry of the Supreme Court's judgment in this matter and the order in Bethco Corp. v. Tweedy, supra, the Board issued a resolution dated March 4, 2005.   We note that although the resolution is dehors the record, it may be considered on appeal as it is a matter of public record, and its existence and accuracy are not disputed (see Brandes Meat Corp. v. Cromer, 146 A.D.2d 666, 667, 537 N.Y.S.2d 177).   Since the Supreme Court was unable to consider whether the resolution was reasonable and complied with the aforementioned due process requirements, or was arbitrary, capricious, or an abuse of discretion, we remit the matter to the Supreme Court, Queens County, for a determination of those issues (see CPLR 7803[3];  Brothers v. Florence, supra at 301, 716 N.Y.S.2d 367, 739 N.E.2d 733;  Matter of Featherstone v. Franco, supra at 554, 720 N.Y.S.2d 93, 742 N.E.2d 607;  Matter of Westmoreland Apt. Corp. v. New York City Water Bd., 294 A.D.2d 587, 588, 742 N.Y.S.2d 892;  see also Matter of Arceri v. Town of Islip Zoning Bd. of Appeals, 16 A.D.3d 411, 412, 791 N.Y.S.2d 149;  Matter of Bracke v. Zoning Bd. of Appeals of Town of Philipstown, 304 A.D.2d 663, 663-664, 757 N.Y.S.2d 482).